Campbell Doesn’t Apply to Federal Drug Offenses

US v. Groves: In 2014, Groves was convicted of aiding and abetting the distribution of crack cocaine under 21 U.S.C. 841, for which he received probation. In 2020, however, Groves was discovered in possession of a firearm and charged with being a felon in possession. After his guilty plea, the main issue at sentencing was whether his 2014 drug conviction was a “controlled substance offense” under the Guidelines (thus increasing his base offense level). Groves argued that it was not under the Fourth Circuit’s decision in Campbell, which held that West Virginia drug offenses did not meet that definition. The district court rejected that argument and imposed a sentence at the bottom of the resulting advisory Guideline range.

On appeal, the Fourth Circuit affirmed Groves’ sentence. Groves argued that, like the attempt offense at issue in Campbell (as well as conspiracy), aiding and abetting is listed as part of the definition of controlled substance offense (and “crime of violence”) in the Guideline commentary and, under Campbell, that expanded definition cannot apply. The court disagreed, adopting the Government’s argument that aiding and abetting was not an offense in of itself, but only a theory of liability. Thus, “an offense prosecuted on an aiding and abetting theory can qualify as a controlled substance offense . . . in that it is the same as the underlying substantive offense.” Moving on, the court then considered whether a substantive 841 offense qualified as a controlled substance offense. The court concluded it did, adopting the distinction of other circuits between “attempted transfer,” which is included in the definition of “delivery,” and “attempted delivery,” with attempted transfer being “a completed delivery rather than an attempt crime.” This avoids rendering 21 U.S.C. 846, the drug attempt and conspiracy statute, superfluous. This allowed the court to distinguish the West Virginia statute in Campbell because it “does not criminalize attempt offenses separately from completed drug distribution offenses.” That there is a separate West Virginia attempt statute “cannot impact our interpretation of 841(a)(1)” and only bears on “the proper construction of the West Virginia drug distribution statute.” There is some suggestion that Campbell was wrong from the start, but the panel is bound by it.

Court Splits on Nature of Statute of Limitations for Money Laundering Conspiracy

 US v. Ravenell: Ravenell was a criminal defense attorney who was charged with various offenses related to his involvement with drug trafficking clients. At trial he was convicted of only one charge – conspiracy to commit money laundering. At issue during trial, at various stages, was whether the Government had proven that the conspiracy continued until it was within the applicable statute of limitations. Ravenell requested that the jury be instructed that the Government had to prove, beyond a reasonable doubt, than at least one overt act occurred within the limitations period. After that was rejected, he sought a revised instruction that reduced the standard to a preponderance of the evidence and dropped the reference to an overt act. That instruction was also rejected. The district court also rejected Ravenell’s motions for acquittal on that ground, holding that the Government had proven that the conspiracy continued into the limitations period and Ravenell had not provided any evidence of withdrawal.

On appeal, a divided Fourth Circuit affirmed Ravenell’s conviction. The court noted that whether an offense was committed within the statute of limitations period was not an element of a conspiracy defense, but an affirmative defense. With that in mind, there was no error in not giving Ravenell’s proposed instructions because they were not correct statements of law. The initial requested instruction referenced an overt act, but the Supreme Court has held that money laundering conspiracy does not have an overt act element. The revised instruction was also incorrect because if the issue was an element, then the preponderance standard would not have applied. The court also concluded that the district court did not err by failing to give any instruction on the statute of limitations because, given the nature of non-overt act conspiracies, the defendant was required to present some evidence of the conspiracy’s termination, which Ravenell did not provide.

Chief Judge Gregory dissented, arguing that the majority’s conclusion that the proposed instructions were “legally deficient” was overly “formulaic.”

Erroneous Aiding & Abetting Instruction Not Prejudicial

US v. Odum: Odum was allegedly the perpetrator of robberies at a Circle K and a Kingsway convenience store. As a result, he was charged with a count each of Hobbs Act robbery and brandishing a firearm in connection with each robbery, as well as being a felon in possession of a firearm. The Government’s evidence against Odum consisted of video of the robberies, each of which involved a masked man with a gun, and circumstantial evidence, such as DNA found on a ski mask recovered near the Circle K that “belonged to Odum,” a match “so strong that unless Odum had a twin, the DNA could not belong to anyone else.” The Government also presented evidence from a jailhouse informant and friend of Odum who testified that Odum told him that he had “messed up” and “got caught” for the robberies. Odum was convicted of the Circle K and related brandishing offense, as well as the felon-in-possession offense, but hung on the other robbery and acquitted on the related brandishing charge. Odum was sentenced to 111 months in prison.

On appeal, the Fourth Circuit affirmed Odum’s convictions. First, Odum argued that the district court’s jury instruction on aiding and abetting was erroneous. Reviewing for plain error (Odum objected to giving an aiding and abetting instruction, but not to the substance of the instruction that was given), the court agreed that the instruction was flawed, as it failed to address intent, and that the error was plain. However, the court concluded that it was not prejudicial. In addition to the strength of the Government’s evidence, the court noted that the instruction was only given as related to the Hobbs Act robbery, not the related firearm offense upon which the jury convicted – and for which the only basis was it was used in the robbery. In other words, the jury’s verdict showed that it did not convict on an aiding and abetting theory. Second, Odum argued that the district court erred by denying his motion to strike a juror who had trouble hearing during voir dire. The court held that the district court had considered the issue when denying the challenge for cause and that the district court did not fail to sua sponte explore the matter further because Odum’s counsel had the opportunity to do so and did not.

No Error for District Court to State Sentence It Would Impose Prior to Defense Argument

US v. Covington: Covington walked away from a halfway house while finishing a prior federal sentence. He was apprehended after a chase in which he “caused a three-car accident, jumped out of the car, and tried to forcefully steal two occupied cars in separate fast-food restraint drive-thru lanes.” Pleading guilty to escape, his Guideline range was 30 to 37 months in prison. not including a reduction for having escaped from a halfway house because of the offenses committed during his capture. At sentencing, Covington first had a “colloquy between himself and the district court” in which he admitted “he was too intoxicated to really recall what happened,” that he had “struggled with alcohol addiction” (his prior conviction was for robbing a liquor store). After the district court “suggested the Covington himself was to blame for not seeking treatment for his alcohol addition,” it then “questioned the low guideline range given the severity of Covington’s conduct” and stated that “the minimum sentence you’re going to get is 60 months,” the statutory maximum. It was only after that point that Covington’s counsel made an argument for a lower sentence (and a lower Guideline range). True to its word, the district court imposed a sentence of 60 months.

On appeal, the Fourth Circuit affirmed Covington’s sentence, against three challenges. Primarily, Covington argued that the district court had plainly erred by discussing the sentence it was going to impose before all argument had been presented. The court disagreed, concluding that the district court’s pronouncement did not amount to “imposing” a sentence. In addition, a “judge may stop short of formal imposition and discuss an intended sentence at any point in the proceeding,” with the court noting that “a defense attorney’s right to be heard can have the most value when she knows what the judge is contemplating.” In addition it was “simply untrue that the district court did not consider Covington’s arguments,” noting that said arguments had been made in advance of sentencing. The court also concluded that the district court’s explanation of its sentence showed that it considered Covington’s alcoholism and that it correctly denied the reduction for escaping from a halfway house.